1. Prior Art:

According to Article 20, Paragraph 2 of the Patent Act amended and promulgated on October 24, 2001,”techonology or knowledge that has been there prior to the filing of the application” which is stipulated with regard to the inventive step is “prior art”, this is because our country has been adopting first-to-file principle, it is therefore that the prior art is said to be the art existed before the patent application being filed, and includes the art that has been disclosed upon the publications, publicly utilized or familiar by the public. The regulative purpose for Paragraph 2 of said Article is to establish that the prior art known by the public (including persons having ordinary skills in the relevant technology field) through the disclosure by the publications or public utilization, or the prior art has been familiar by the public before the filing date or priority date of the patent application, shall deprive novelty from said patent application; and while the technology of the patent application is not any art disclosed before the filing date or the priority date and thereby known by the public, a patent is still not necessary to be granted for such technology provided that the same can be easily attained by persons having ordinary skills in the relevant technology field (referring to the Decisions of 2009 Pan Zi No. 1277, 2010 Pan Zi No. 366 and No. 1271 by the Supreme Administrative Court). “Prior art” is not limited to a single mode but comprises varied aspects, such as written, electronic, Internet forms, exhibition or utilization (referring to the Decision of 2010 Pan Zi No. 366 by the Supreme Administrative Court). The so-called “publication” is a printed matter, such as domestic or foreign magazine, newspaper, book, brochure, pamphlet or poster with open writing or drawing under a manner that is readily readable by the general public, and is not necessarily publicized within the territory of our country (referring to the Decisions of 1986 Pan Zi No. 1348 by the Administrative Court before reformation, and 2007 Pan Zi No. 1357 by the Supreme Administrative Court). The format thereof is not limited to a typed or printed paper copy, but can include media such as microfilm, electronic data carrier, computer data base or Internet, and the means adopted for transmitting the technical content is not limited to words or drawings, either, while the more important point is whether the content can be publicly distributed or published through ways of transcription, photograph, photocopy, duplication or the like, so the public is situated in a state of being able to readily read and thereby consciously perceive the disclosed technical content, and the public is not required to actually read or have learned such content de factoly.

2. Scope of Infringement Exclusion and Prevention:
The appellee has an exclusive right to prevent others from making, offering for sale, selling, using, or importing the patented product for the aforementioned purposes without the appellee’s consent (referring to Article 56, Paragraph 1 of the Patent Act amended and promulgated on February 6, 2003), and thus can prevent others from infringing its patent right from the first place. However, even though the service at issue by the company of the appellant has fallen within Claim 1 of the patent at issue, because the appellee did not submit other evidence to show that the company of the appellant is currently still providing the service at issue, there is no patent infringement at present time, so the appellee cannot request this court to exclude the infringement in accordance with Article 84, Paragraph 1 of the said Patent Act if the good standing of the appellee’s patent is not infringed. Nevertheless, in light of the facts that the service at issue provided by the company of the appellant before infringed the patent at issue, and the company of the appellant is continuously operating the business of questionnaire survey and the like while equipped with the professional knowledge and capability of designing and producing online questionnaire survey, the possibility of future infringement against the patent at issue is objectively high enough to call in the necessary preventive steps in advance. As a result, it is legitimately satisfactory for the appellee to request this court to prevent the infringement from happening according to Article 84, second half paragraph of Paragraph 1 of the said Patent Act. Further, the scope of infringement prevention shall be based upon and limited to the patent right regulated by Article 56, Paragraph 1 of the said Patent Act (that is, the right to prevent others from making, offering for sale, selling, using, or importing the patented product for the aforementioned purposes), and the service at issue as well as other products infringing the patent at issue.
As for the petition amended by the appellee during the trial by this court: “the company of the appellant shall neither make, offer for sale, sell, use the ‘XX survey service’ system, nor make, offer for sale, sell, use, import other ‘system or service’ ‘substantially’ infringing the patent at issue for the aforementioned purposes ‘or so’ ,” the phrase “or so” therein suggests “all other acts in addition to the acts of making, offering for sale, selling, using, or importing for the aforementioned purposes”, and has exceeded the scope of the exclusive right associated with a patent rendered by Article 56, Paragraph 1 of the said Patent Act. In addition, because the meaning of the so-called “substantially infringing the patent at issue” is indefinite, and Claim 1 of the patent at issue refers to a “patented goods”, the object of non-act thereof shall thus be “goods infringing the patent at issue” as shown in the third item of the ruling in response to the term “goods” as stipulated in the said Article.

3. Scope of Damages:
Regarding the calculation of the scope of the damages for the present patent infringement, the appellee selected the method of calculating damages based upon Article 85, Paragraph 1, Subparagraph 2 of the said Patent Act.
Because the company of the appellant has issued invoices while operating its business, it is thereby sufficient to determine the sales and revenue resulted from the service at issue by the company of the appellant. Accordingly, when the appellant has been requested by the appellee to submit all the invoices issued during 2007 to 2009 for the calculation of damages, the amount of damages suffered in the present case is possible to be evidenced objectively, and to conduct such calculation is not considered particularly difficult, so it is improper to estimate said amount by methods proposed by the appealed decision and by the appellee without leave.
As aforementioned, both parties have been called to inspect 134 invoices regarding sales in the name of “marketing survey” issued by the company of the appellant during 2007 to 2009 together, and the same has been confirmed by the appellant and plural witnesses summoned by this court, wherein the ones as shown in Exhibition 2 belong to “industry customized questionnaire service”, the ones as shown in Exhibition 3 are deemed as services at issue because the company of the appellant could not prove otherwise, and Exhibition 4 belongs to “student type online service” (which is one of the services at issue). Meanwhile, because the appellee asserted that the period of infringement started from November 30th, 2007, the date when the company of the appellant received the cease-and-desist letter as shown in Original Evidence 6, the invoices issued on and before November 29th, 2007 as shown in Exhibition 3-1 are therefore not covered by the scope of infringement and should be excluded. As a result, the profit obtained by the company of the appellant includes $5,783,247 and $10,000, the revenue of the services at issue as shown in Exhibition 3-2 and Exhibition 3-4, respectively.
With regard to the calculation of the cost and necessary fees, although this court expounded that a further investigation can be conducted upon the operating cost, operating expenses, detailed operating cost and the like of the statement of profit and loss within the financial report, for instance, to have the certified public accountant retained by the appellant surrender related data, such as relevant evidence adopted during the production of the financial report, the appellee alleged that the operating cost, fees of the company of the appellant can be referred and only the invoices issued during 2007 to 2009 by the company of the appellant need to be examined, and further stated upon its answer that the criteria for the calculation shall be 30% of the average net profit after the operating income claimed in 2007 and 2008 being deducted by the cost, this court therefore calculated the amount of the damages pursuant to the allegation by the appellee. The appellee produced the financial report (out-of-court evidence) of the company of the appellant examined and verified by the certified public accountant during 2007 and 2009 without objection from the appellant, in which the statement of profit and loss during 2007 and 2009 shows that the operating net profit by the company of the appellant in 2007, 2008 and 2009 are 29%, 31% and 27%, respectively, then through the calculation, the revenue gained by the company of the appellant under the provision of the services at issue as shown in Exhibition 3-2 and Exhibition 3-4 are $1,768,265 and $3,000, respectively, and as a result, the appellee is qualified to request $1,771,265 from the company of the appellant as damages.
The appellee also asserted that although a portion of the service provided by the appellant need not be paid for, the appellant can still gain revenue therefrom, and in response to such assertion, this court expounded that the scope of damages resulted from the infringement of the patent at issue shall be based upon the infringing service, so even if the appellant gained other service-related revenue due to the provision of infringing free services, this revenue can still not be counted into the scope of damages unless there is proximate cause; however, the appellee was unable to produce further evidence to establish the existence of the proximate cause. Furthermore, the appellee alleged that regarding the free service, there were 10,000 recipients of the questionnaire and 3,600 questionnaires being sent out per month, so the damages should be calculated by charging $100 for each infringing act accordingly; however, this allegation was denied by the appellant, and this court thus ordered the appellee to produce necessary evidence to support its own allegation. Nevertheless, although the appellee replied that the evidence shall be submitted thereafter, no evidence has ever been produced and the allegation of the appellee is therefore not admitted.